A CRITIQUE OF
“NATIONAL SECURITY COURTS”
A REPORT BY THE CONSTITUTION PROJECT’S
LIBERTY AND SECURITY COMMITTEE &
COALITION TO DEFEND CHECKS AND BALANCES
JUNE 23, 2008
CONSTITUTION PROJECT STAFF
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A CRITIQUE OF “NATIONAL SECURITY COURTS”*
I.
INTRODUCTION
Recently, some scholars and government officials have called for the creation of “national
security courts”—specialized hybrid tribunals that would review the preventive detention of
suspected terrorists (both within and outside of the territorial United States), conduct the
detainees’ criminal trials, or, in some cases, both. 1 Advocates for these courts claim that they
offer an attractive middle ground between adherence to traditional criminal processes and
radical departures from those processes. 2
For the reasons that follow, we, the undersigned members of the Constitution Project’s Liberty
and Security Committee and its Coalition to Defend Checks and Balances, believe that the
proposals to create these courts should be resisted. The proposals are surprisingly—indeed
alarmingly—underdeveloped. More seriously, they neglect basic and fundamental principles of
American constitutional law, and they assume incorrectly that the traditional processes have
proven ineffective. The idea that there is a class of individuals for whom neither the normal
civilian or military criminal justice systems suffice presupposes that such a class of individuals is
readily identifiable—and in a manner that does not necessarily pre-judge their guilt. The idea
that national security courts are a proper third way for dealing with such individuals
presupposes that the purported defects in the current system are ones that cannot adequately
be remedied within the confines of that system, and yet can be remedied in new tribunals
without violating the Constitution.
We believe that the government can accomplish its legitimate goals using existing laws and
legal procedures without resorting to such sweeping and radical departures from an American
constitutional tradition that has served us effectively for over two centuries. We separately
address below proposals for a national security court for criminal prosecutions of terrorism
suspects and proposals for such a court to review preventive detention decisions, and the
reasons why each should be rejected.
*
The Constitution Project sincerely thanks Stephen I. Vladeck, Associate Professor, American University Washington
College of Law, for his extensive researching and drafting work on this statement as well as a background report for
committee members, and for his work in guiding committee members to consensus on these issues.
1.
For a non-exhaustive (but largely representative) sampling of discussions of the proposals for such hybrid courts, see
ANDREW C. MCCARTHY & ALYKHAN VELSHI, WE NEED A NATIONAL SECURITY COURT (2006),
http://www.defenddemocracy.org/usr_doc/NationalSecurityCourt.doc; Harvey Rishikof, Is It Time for a Federal
Terrorist Court? Terrorists and Prosecutions: Problems, Paradigms, and Paradoxes, 8 SUFFOLK J. TRIAL & APP. ADVOC. 1
(2003); Glenn M. Sulmasy, The Legal Landscape After Hamdan: The Creation of Homeland Security Courts, 13 NEW
ENG. J. INT’L & COMP. L. 1 (2006); Amos Guiora & John T. Parry, Debate, Light at the End of the Pipeline?: Choosing a
Forum for Suspected Terrorists, 156 U. PA. L. REV. PENNUMBRA 356 (2008),
http://www.pennumbra.com/debates/terrorcourts.pdf; BENJAMIN WITTES, LAW AND THE LONG WAR: THE FUTURE OF JUSTICE
IN THE AGE OF TERROR (2008). See also Robert M. Chesney & Jack L. Goldsmith, Terrorism and the Convergence of
Criminal and Military Detention Models, 60 STAN. L. REV. 1079, 1081 (2008).
2.
See, e.g., Jack L. Goldsmith & Neal Katyal, Op-Ed., The Terrorists’ Court, N.Y. TIMES, July 11, 2007, at A19; see also
Michael B. Mukasey, Op-Ed., Jose Padilla Makes Bad Law, WALL ST. J., Aug. 22, 2007, at A15.
II.
CRIMINAL TRIALS FOR TERRORISM SUSPECTS
Advocates of national security courts that would try terrorism suspects claim that traditional
Article III courts are unequipped to handle these cases. This claim has not been substantiated,
and is made in the face of a significant — and growing — body of evidence to the contrary. A
recent report released by Human Rights First persuasively demonstrates that our existing
federal courts are competent to try these cases. The report examines more than 120
international terrorism cases brought in the federal courts over the past fifteen years. It finds
that established federal courts were able to try these cases without sacrificing either national
security or the defendants’ rights to a fair trial. 3 The report documents how federal courts have
successfully dealt with classified evidence under the Classified Information Procedures Act
(CIPA) without creating any security breaches. It further concludes that courts have been able
to enforce the government’s Brady obligations to share exculpatory evidence with the accused,
deal with Miranda warning issues, and provide means for the government to establish a chain
of custody for physical evidence, all without jeopardizing national security.
Of course, our traditional federal courts have not always done everything that the government
would like them to do. They are, after all, constrained by well-established constitutional limits
on prosecutorial power. For example, no federal court would permit the prosecution to present
witnesses without protecting the defendant’s constitutional right to confront those witnesses
against him or her. 4 Nor would a federal court permit the prosecution to rely on a coerced
confession in violation of a defendant’s Fifth Amendment right against self-incrimination. But
creating a new set of courts would not repeal existing constitutional rights. Conversely, to the
extent that the existing rules are not constitutionally compelled, ordinary federal courts (or
Congress, where applicable) can modify them when it is shown that the modification is
necessary to accommodate the government’s legitimate interests.
Most importantly, there is the intrinsic and inescapable problem of definition. Whereas the
argument for specialized courts for tax and patent law is that expert judges are particularly
necessary given the complex subject-matter, proposals for specialized courts for terrorism trials
are based on the asserted need for relaxed procedural and evidentiary rules and are justified on
the ground that terrorists do not deserve full constitutional protections. 5 This creates two
fundamental constitutional problems. First, justifying departures from constitutional protections
on the basis that the trials are for terrorists undermines the presumption of innocence for these
individuals. Second, if a conviction were obtained in a national security court using procedural
3.
RICHARD B. ZABEL & JAMES J. BENJAMIN, JR., HUMAN RIGHTS FIRST, IN PURSUIT OF JUSTICE: PROSECUTING TERRORISM
THE FEDERAL COURTS (MAY 2008), http://www.humanrightsfirst.info/pdf/080521-USLS-pursuit-justice.pdf.
4.
See, e.g., Crawford v. Washington, 541 U.S. 36 (2004).
5.
Although some proponents of national security courts analogize their proposals to the Foreign Intelligence Surveillance
Court, there is a marked difference between a specialized court for obtaining a particular type of warrant and a
specialized court to conduct a criminal trial. The Foreign Intelligence Surveillance Court does not handle contested
trials; rather, its only role is to handle government surveillance applications under FISA. In the analogous context of
specialized non-Article III courts, the Supreme Court has itself warned that the legitimacy of such courts is closely
linked to the limited nature of their jurisdiction. See, e.g., CFTC v. Schor, 478 U.S. 833, 851 (1986).
National Security Courts
2
CASES IN
and evidentiary rules that imposed a lesser burden on the government, then the defendant
would be subjected to trial before a national security court based upon less of a showing than
would be required in a traditional criminal proceeding. The result would be to apply less due
process to the question of guilt or innocence, which, by definition, would increase the risk of
error. And, if the government must make a preliminary showing that meets traditional rules of
procedure and evidence in order to trigger the jurisdiction of a national security court, such a
showing would also enable it to proceed via the traditional criminal process.
National security courts for criminal prosecutions are not just unnecessary; they are also
dangerous. They run the risk of creating a separate and unequal criminal justice system for a
particular class of suspects, 6 who will be brought before such specialized courts based on the
very allegations they are contesting. Such a system undermines the presumption of innocence
for these defendants, and risks a broader erosion of defendants’ rights that could spread to
traditional Article III trials. 7 It was Justice Frankfurter who wrote that “It is a fair summary of
history to say that the safeguards of liberty have frequently been forged in controversies
involving not very nice people.” 8 Committee members strongly believe that the shadow of
terrorism must not be the basis for abandoning these fundamental tenets of justice and
fairness.
In addition, these proposals are alarmingly short on details with respect to the selection of
judges for these national security courts. Although there is a history of creating specialized
federal courts to handle particular substantive areas of the law (e.g., taxation; patents), unlike
tax and patent law, there is simply no highly specialized expertise that would form relevant
selection criteria for the judges. Establishing a specialized court solely for prosecutions of
alleged terrorists might also create a highly politicized process for nominating and confirming
the judges, focusing solely on whether the nominee had sufficient “tough on terrorism”
credentials — hardly a criterion that lends itself to the appearance of fairness and impartiality.
None of the above is to deny that there is a class of individuals who may be tried in appropriate
military tribunals. Persons captured by the U.S. military as part of an armed conflict have
traditionally been subject to military jurisdiction under the laws of war. This principle is wellestablished, but it has long coexisted with the complementary principle that only individuals
who are properly subject to military jurisdiction under the laws of war may be so tried. Military
6.
Indeed, it is also likely that the overwhelming majority of defendants in such proceedings would be of particular
national and religious backgrounds, a point that would only further undermine the appropriateness of such a “separate”
system. Cf. Neal Kumar Katyal, Equality in the War on Terror, 59 STAN. L. REV. 1365 (2007). The creation of a different
court to try suspects, most of whom, if not all of whom, are likely to be Muslims, would be widely seen as the creation
of a second-class justice system for Muslims. That result would further tarnish the United States’ reputation for justice
and fairness in the Arab and Muslim world, and would be counterproductive for U.S. foreign policy and our efforts to
combat terrorism.
7.
This concern is more than speculative. As Professor Laura Donohue has recently documented, a series of “temporary”
relaxed judicial procedures adopted by the United Kingdom in response to perceived threats of terrorism from Ireland
ultimately became permanent, and were broadened to apply to non-terrorist crimes as well. See LAURA K. DONOHUE, THE
COST OF COUNTERTERRORISM: POWER, POLITICS, AND LIBERTY 14–16 (2008).
8.
United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting).
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3
tribunals may not try offenders or offenses unless they are encompassed by traditional laws of
war. 9
Just as there is no need to establish national security courts to replace traditional Article III
courts, so too there is no need to create such tribunals to handle cases that would normally be
tried by military courts. Individuals should be tried either in our traditional criminal justice
system or in properly constituted military courts.
III.
PREVENTIVE DETENTION OF TERRORISM SUSPECTS
National security courts have also been proposed to serve as a forum for resolving challenges to
preventive detention, not only for individuals currently detained at Guantánamo, but also for
both citizens and non-citizens arrested within the United States. We reject the proposals
because we believe that such a forum would be both unnecessary and unconstitutional. As the
Supreme Court’s recent decision in Boumediene v. Bush illustrates, existing Article III courts are
fully capable of adjudicating issues regarding the legality of detention. 10 There is no need to
create a specialized tribunal either for the Guantanamo detainees or for anyone else who may
be subject to detention under existing law.
The Supreme Court has held that “[i]n our society liberty is the norm, and detention prior to
trial or without trial is the carefully limited exception.” 11 Committee members recognize that
individuals can be detained for limited time periods for certain specific and carefully delineated
purposes. Thus, non-citizens in immigration proceedings may lawfully be detained pending
deportation where they pose a risk of flight or a danger to the community and detention is
necessary to effectuate removal. Criminal suspects may lawfully be detained pending trial,
again, if they pose a risk of flight or a danger to the community. And, during armed conflicts,
members of the enemy armed forces may lawfully be detained as prisoners of war until the
cessation of hostilities. The precise scope of detention authorized in the course of the conflict
9.
Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (plurality). Thus, although the substantive provisions of the Military
Commissions Act of 2006 (“MCA”), Pub. L. No. 109-366, 120 Stat. 2600, include within their scope authorization for
military tribunals for offenses and offenders that were traditionally subject to military jurisdiction, it also sweeps much
more broadly. To the extent that the MCA’s personal and subject-matter jurisdiction extend beyond the confines of that
military jurisdiction consistent with the laws of war, the Committee believes that the MCA is unconstitutional.
10. Boumediene v. Bush, No. 06-1195, 2008 WL 2369628 (U.S. June 12, 2008). The decision recognizes the constitutional
rights of the Guantanamo detainees to challenge their detentions through federal habeas petitions. Traditional Article
III courts are fully capable of handling such habeas petitions and are the proper forum for resolving these claims.
11. United States v. Salerno, 481 U.S. 739, 755 (1987) (upholding preventive detention pending a criminal trial only where
there is a showing of a threat to others or risk of flight, the detention is limited in time, and adequate procedural
safeguards are provided). Also, as Justice Thomas explained in Kansas v. Hendricks, “States have in certain narrow
circumstances provided for the forcible civil detainment of people who are unable to control their behavior and who
thereby pose a danger to the public health and safety.” 521 U.S. 346, 357 (1997) (citations omitted). While the
Supreme Court has “consistently upheld such involuntary commitment statutes provided the confinement takes place
pursuant to proper procedures and evidentiary standards,” that is not to say that such “civil commitment” statutes do
not raise their own panoply of constitutional questions. But regardless of those issues, such cases are easily
distinguishable from preventive detention of terrorism suspects. The purported danger from suspected terrorists stems
from alleged criminal conduct. Consequently, a suspected terrorist should be prosecuted in a criminal court.
National Security Courts
4
with the Taliban and Al Qaeda in Afghanistan, remains a matter of dispute, but there is no
reason that traditional Article III courts cannot resolve it. 12 But potentially indefinite preventive
detention, either for the purposes of interrogation and intelligence-gathering or because the
government believes it cannot prosecute the detainee but does not want to release the
individual, falls into none of these categories. And because such preventive detention without
charge is unconstitutional, there is no reason to create national security courts to supervise it.
In short, existing law, administered by existing courts, authorizes the government to detain
individuals where they fit recognized limited categories of persons subject to detention. Even if
an individual is not subject to detention under the laws of war, the government may seek to
detain an individual suspected of a terrorism-related offense by bringing charges and asking for
denial of bail before trial. Once charges are filed and a probable cause showing has been made,
the Bail Reform Act empowers the government to seek to detain criminal suspects without bail,
upon a showing of potential dangerousness. 13 If the government is not yet ready to proceed to
trial at the time of such a showing, the Speedy Trial Act includes substantial flexibility,
especially where “the ends of justice served by taking such action outweigh the best interest of
the public and the defendant in a speedy trial,” 14 or where relevant evidence is located in a
foreign country. 15
IV.
RECOMMENDATIONS
For these reasons, we, the undersigned members of the Constitution Project’s Liberty and
Security Committee and Coalition to Defend Checks and Balances, make the following
recommendations:
1. Prosecutions for terrorism offenses can and should be handled by traditional Article III
courts, except that combatants captured on the battlefield who would be subject to
traditional military jurisdiction may be tried by military courts for offenses properly triable by
such courts. We do not need to, and should not, create specialized national security courts
for this purpose.
12. Justice O’Connor’s plurality opinion in Hamdi v. Rumsfeld, 542 U.S. 507 (2004)(plurality) stated that even beyond the
authority to hold prisoners of war, the government may also detain individuals captured on the battlefield as “enemy
combatants” until the cessation of active hostilities. There is some disagreement among committee members as to
whether the Hamdi plurality position is correct. Some committee members find Justice Souter’s opinion more
convincing. As Justice Souter explained in Hamdi, the government could have detained alleged “enemy combatants”
such as Hamdi as POWs. Because it chose not to do so, Justice Souter concluded that the Authorization for Use of
Military Force (“AUMF”) was an insufficiently clear statement of congressional intent for other forms of preventive
detention. However, even under the plurality’s formulation, the detention authority extending beyond POWs only
applies to individuals who are captured on the battlefield. As several studies have shown, the percentage of post-9/11
detainees actually captured on the battlefield is comparatively small. See, e.g., MARK DENBEAUX ET AL., REPORT ON
GUANTANAMO DETAINEES: A PROFILE OF 517 DETAINEES THROUGH ANALYSIS OF DEPARTMENT OF DEFENSE DATA (2006).
13. See generally Salerno v. United States, 481 U.S. 739 (1987).
14. See 18 U.S.C. § 3161(h)(8)(A).
15. See id. § 3161(h)(9).
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2. We should not create specialized national security courts to oversee a system of preventive
detention for terrorism suspects. Apart from detention under the laws of war, the United
States government should only be permitted to detain an individual suspected of a terrorism
offense if it can make a probable cause showing to a judge and it intends to prosecute that
individual, or if appropriate, as part of immigration removal proceedings.
V.
CONCLUSION
No one denies that hard questions remain to be asked and answered concerning the most
appropriate means by which our legal system deals with the continuing threat posed by
international terrorism. But establishing a new, unprecedented, and unnecessary system of
tribunals risks undermining the constitutional protections enshrined in our criminal justice
system, and would ultimately create far more problems than it could possibly solve.
The idea that national security courts are a proper third way for dealing with such individuals
presupposes that the purported defects in the current system are ones that cannot adequately
be remedied within the confines of that system, and yet can be remedied in hybrid tribunals
without violating the Constitution. We strongly disagree. Traditional Article III courts can meet
the challenges posed by terrorism prosecutions, and proposals to create national security courts
should be rejected as a grave threat to our constitutional rights.
National Security Courts
6
Members of the Constitution Project’s
Liberty and Security Committee &
Coalition to Defend Checks and Balances
Endorsing a Critique of “National Security Courts” *
CO-CHAIRS:
David Cole, Professor of Law, Georgetown University Law Center
David Keene, Chairman, American Conservative Union
MEMBERS:
Azizah al-Hibri, Professor of Law, The T.C. Williams School of Law, University of Richmond;
President, Karamah: Muslim Women Lawyers for Human Rights
Bob Barr, Former Member of Congress (R-GA); CEO, Liberty Strategies, LLC; the 21st Century
Liberties Chair for Freedom and Privacy at the American Conservative Union; Chairman of
Patriots to Restore Checks and Balances; practicing attorney
David E. Birenbaum, Of Counsel, Fried, Frank, Harris, Shriver & Jacobson LLP; Senior
Scholar, Woodrow Wilson International Center for Scholars; U.S. Ambassador to the UN for UN
Management and Reform, 1994-96
General Wesley K. Clark (USA, Ret.), Chairman and CEO, Wesley K. Clark Associates, LLC;
former Supreme Allied Commander Europe and Commander-in-Chief, United States European
Command
Phillip J. Cooper, Professor of Public Administration, Mark O. Hatfield School of Government,
Portland State University
John W. Dean, Counsel to President Richard Nixon
Mickey Edwards, Vice President, Aspen Institute; Lecturer, Woodrow Wilson School of Public
and International Affairs, Princeton University; former Member of Congress (R-OK) and
Chairman of the House Republican Policy Committee
Richard Epstein, James Parker Hall Distinguished Service Professor of Law, the University of
Chicago; Peter and Kirsten Bedford Senior Fellow, the Hoover Institution
Eugene R. Fidell, President, National Institute of Military Justice; Partner, Feldesman Tucker
Leifer Fidell LLP
Louis Fisher, Specialist in Constitutional Law, Law Library, Library of Congress
Michael German, Adjunct Professor, National Defense University School for National Security
Executive Education; Special Agent, Federal Bureau of Investigation, 1988-2004
Melvin A. Goodman, Senior Fellow and Director of the National Security Project, Center for
International Policy
Morton H. Halperin, Executive Director, Open Society Policy Center; Senior Fellow, Center for
American Progress; Director of the Policy Planning Staff, Department of State, Clinton
administration
David Kay, Former Head of the Iraq Survey Group and Special Advisor on the Search for Iraqi
Weapons of Mass Destruction to the Director of Central Intelligence
Christopher S. Kelley, Visiting Assistant Professor of Political Science, Miami University (OH)
Philip Heymann, James Barr Ames Professor of Law, Harvard Law School; Deputy Attorney
General, Clinton Administration
Harold Hongju Koh, Dean and Gerard C. & Bernice Latrobe Smith Professor of International
Law, Yale Law School; U.S. Assistant Secretary of State for Democracy, Human Rights & Labor,
1998-2001
David Lawrence, Jr., President, Early Childhood Initiative Foundation; former Publisher,
Miami Herald and Detroit Free Press
Joseph Margulies, Deputy Director, MacArthur Justice Center; Associate Clinical Professor,
Northwestern University School of Law
Kate Martin, Director, Center for National Security Studies
Thomas R. Pickering, Undersecretary of State for Political Affairs 1997-2000; United States
Ambassador and Representative to the United Nations, 1989-1992
L. Michael Seidman, Carmack Waterhouse Professor of Constitutional Law, Georgetown
University Law Center
William S. Sessions, Former Director, Federal Bureau of Investigation; former Chief Judge,
United States District Court for the Western District of Texas
David Skaggs, Executive Director, Colorado Commission on Higher Education; Former Member
of Congress (D-CO)
Earl Silbert, Partner, DLA Piper; United States Attorney, District of Columbia (1974-1979);
Former Watergate Prosecutor
Neal Sonnett, Chair, American Bar Association Task Force on Treatment of Enemy
Combatants and Task Force on Domestic Surveillance in the Fight Against Terrorism
Suzanne Spaulding, Principal, Bingham Consulting Group; former Chief Counsel, Senate and
House Intelligence Committees; former Executive Director, National Terrorism Commission;
former Assistant General Counsel, CIA
Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor of Law, the University of
Chicago
John F. Terzano, Vice President, Veterans for America
Charles Tiefer, General Counsel (Acting) 1993-94, Solicitor and Deputy General Counsel,
1984-95, U.S. House of Representatives
Patricia M. Wald, Former Judge at the International Criminal Tribunal for the former
Yugoslavia; former Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit
John W. Whitehead, President, the Rutherford Institute
REPORTER
Stephen I. Vladeck, Associate Professor, American University Washington College of Law
* Affiliations are listed for identification purposes only